NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-464

J.B.

vs.

R.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a hearing, a judge of the District Court issued a 

harassment prevention order against the defendant, pursuant to

G. L. c. 258E, § 3. Because we conclude that the defendant's 

conduct amounted to only two acts of harassment, the order must 

be vacated and set aside.

Background. On October 31, 2022, the plaintiff applied for 

a harassment prevention order against the defendant, the 

plaintiff's neighbor, after a confrontation between the parties 

the previous day. According to the plaintiff's supporting 

affidavit, the defendant stood in front of the plaintiff's 

truck, told the plaintiff he needed to "min[d] [his] own fucking 

business," and then hit the truck with his hand as the plaintiff 

started to drive away. This confrontation occurred the morning 
2

after the plaintiff called the fire department to report a 

bonfire on the defendant's property.

At the hearing, the plaintiff initially testified about the 

hitting of his truck and another incident of alleged harassment 

by the defendant. Specifically, the plaintiff testified that 

while he was in the hospital undergoing knee replacement 

surgery, the defendant was "doing donuts in the road, burning up 

and calling my name." Although the plaintiff was not home, his 

children were, and they told him what happened.

After defense counsel argued that "[t]here's not three 

incidents here," the judge asked the plaintiff how many times 

the defendant had done "wheelies and call[ed] out his name." 

The plaintiff responded that it had happened "[s]everal times" 

and that it "has been going on since [the defendant] moved in a 

year ago." After the judge later referred to "the two or three 

times that [the defendant has] been driving around yelling his 

name," defense counsel objected that "[h]e's just vaguely saying 

it's been more than once." During questioning by defense

counsel, the plaintiff confirmed he based his request for a 

harassment prevention order on a total of five incidents: 

fireworks being set off at night on the defendant's property, 

two bonfires on the defendant's property, the driving and 

yelling incident witnessed by the plaintiff's children, and the 

hitting of the truck on October 30 that led to the complaint 
3

being filed the next day. The judge then issued the harassment 

prevention order, from which the defendant now appeals.1

Discussion. Although the harassment prevention order 

expired on April 28, 2023, the appeal is not moot because the 

defendant "still has a stake in the outcome of the appeal, 

including removing any stigma from [his] name through the 

destruction of the order." Seney v. Morhy, 467 Mass. 58, 62 

(2014). In reviewing the issuance of a harassment prevention 

order, "we consider whether the judge could find, by a 

preponderance of the evidence, together with all permissible 

inferences, that the defendant committed '[three] or more acts 

of willful and malicious conduct aimed at a specific person 

committed with the intent to cause fear, intimidation, abuse or 

damage to property and that [did] in fact cause fear, 

intimidation, abuse or damage to property.'" A.T. v. C.R., 88 

Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. See 

Gassman v. Reason, 90 Mass. App. Ct. 1, 8 (2016) ("the term 

'harass' has a specific definition in this context, derived from 

the statute and case law, a definition much more exacting than 

common usage").

Here, the plaintiff presented evidence of two discrete

incidents of harassment. First, the defendant allegedly 

1 The plaintiff did not submit a brief to this court.
4

obstructed the plaintiff's truck, told the plaintiff to mind his 

own business, and then hit the plaintiff's truck. Second, as 

reported to the plaintiff by his children, the defendant

allegedly drove "donuts in the road, burning up" and yelled the 

plaintiff's name. Assuming without deciding that both incidents 

were willful acts motivated by cruelty, hostility, or revenge 

with the intent to cause the plaintiff to experience fear or 

intimidation, and that the plaintiff did experience fear or 

intimidation, they constitute only two of the three acts 

required under the statute.

There was insufficient evidence of a third act. The 

plaintiff's affidavit addressed only the obstruction and hitting

of his truck. At the hearing, the plaintiff testified about

that incident and the driving and yelling incident witnessed by 

his children. Then, at the judge's prompting, the plaintiff

initially appeared to testify that the defendant had done 

"burnouts" in his vehicle and yelled the plaintiff's name

"several times," but clarified that the defendant's act of 

"calling [the plaintiff's] name out" occurred during the

incident witnessed by his children, when the plaintiff was in 

the hospital. Later, under questioning by defense counsel, the 

plaintiff confirmed that of the five harassing incidents he 

alleged, only one involved the defendant driving and yelling the 

plaintiff's name. Three of those five incidents involved the 
5

use of fireworks or setting of bonfires on the defendant's 

property. Because there was no evidence that these three 

incidents involved acts "aimed at" the plaintiff or intended to 

cause him fear or intimidation, they do not qualify as acts of 

harassment under G. L. c. 258E, § 1. See C.E.R. v. P.C., 91 

Mass. App. Ct. 124, 127-128 (2017); Gassman, 90 Mass. App. Ct. 

at 9.

Because the evidence, which consisted solely of the 

plaintiff's affidavit and testimony, failed to establish that 

the defendant committed three acts of harassment as defined by 

G. L. c. 258E, § 1, the harassment prevention order should not 

have issued. We therefore remand the case to the District Court 

for entry of an order vacating and setting aside the order dated 

October 31, 2022, and for further actions required by G. L. 

c. 258E, § 9. See F.K. v. S.C., 481 Mass. 325, 335 (2019).

So ordered.

By the Court (Vuono, Shin & 

Toone, JJ.2),

Assistant Clerk

Entered: April 26, 2024.

2 The panelists are listed in order of seniority.